Traversing the Law: Applying Math Instead of Professional Judgment
May 14, 2008
Instead of applying judgment and professionalism to a situation, we grab a formula, do some math and act like technicians. This indicates to me that many who are licensed as land surveyors (or any other similar title used across the various jurisdictions) should not be practicing boundary surveying. Unfortunately, there is nothing short of self-discipline and/or ethical considerations to prevent anyone with a surveying license from performing boundary surveys.
Many services that fall under the broad umbrella of surveying offer more compensation and profitability than boundary surveys. Let’s face it, you’re not going to get rich surveying Ma Kettle’s 5-acre homestead. But there is no work we do that is more important.
Boundary surveying work is important for many reasons, only a few of which I can touch on in this column. It’s the work that really separates us from the engineers and architects who are focused on design and formulas and aligns us more with the legal profession where ideas, situations and people are involved. Boundary surveying doesn’t involve formulas (as much as we try to make it so), and as the BLM Manual states: “No definite set of rules can be laid down in advance. The solution to the problem must be found on the ground by the surveyor.”
This work puts us in contact with the general public and with what is, for most people, the greatest treasure they have on this earth: their homes, farms and land. Because of this contact, boundary surveyors are more prone to be involved in lawsuits than engineers and architects. This isn’t to say that engineers and architects aren’t involved in controversies. They are. We just don’t hear about them as often as we hear about boundary disputes involving surveyors. This is because, by and large, the controversies engineers and architects are involved in boil down to a business decision of “How much is it going to cost me to make this go away?”
Controversies over property boundaries involve people, their property and their principles. Money isn’t the issue, although it always plays a role. When someone (usually a surveyor) tells Farmer Brown that he no longer owns land that he thought he owned or tells him he owns additional land he knew nothing about, the guiding principle becomes “I want what’s mine.” The boundary surveyor then, steeped in confusion over the guiding principles and doctrines of property law, is more likely to start a boundary dispute than he or she is to resolve one.
This month, we are going to look at a case involving surveyors, a boundary dispute, “rules of surveying,” property law and landowners. If there were ever a case where the surveyor had an opportunity to deal with not only the “things” of surveying but also the “situation,” the “ideas” and the “people,” Romain v. Stael  is it. Unfortunately, this surveyor deals with the “things,” leaving the real work for the real professionals. This surveyor turns a boundary situation into a math problem. Math, however, is seldom the solution to a boundary issue. Believe it or not, boundaries have been created and re-established for centuries without any math at all and, yes, even without RTK GPS.
The Facts in the CaseThe Romain v. Stael case involves a dispute over the identification and location of the northern boundary of the Romain property where it meets the southern boundary of the Stael property. As I have written on many occasions, there are only two questions to answer when surveying property boundaries: What is the boundary, and Where is the boundary? The answer to the “what” is the northern boundary of Government Lot 2. The question remaining was the “where.” According to court testimony, Government Lot 2 adjoins a lake on the west and the northern boundary was never monumented by the government.
In 1959, the boundary was first monumented by James Halverson in the preparation of a subdivision plat involving portions of Government Lot 2. That survey was followed in 1968 by Robert Busch, who agreed with Halverson. In 1973, another owner of land adjoining Government Lot 2 had his land surveyed by Harold Peterson, who opined that both Halverson and Busch were wrong and that the northern boundary of Government Lot 2 was actually south of the Halverson-Busch line creating a strip of land 10 feet wide on one end, 17 feet wide on the other and about 260 feet long all the way down to the lake. However, Peterson never monumented this line, and the plat he prepared held the Halverson-Busch line as the boundary. In a court exhibit, the Halverson-Busch line was marked as the “red line” and the Peterson line was marked as the “green line.” A fourth unnamed surveyor came along in 1977 and prepared yet another plat in accordance with the “red” Halverson-Busch line.
The strip of land in Peterson’s plat did not go unnoticed. (As I have said before, we like to think that our work goes unnoticed, but it doesn’t.) Over the ensuing years, parties who felt they had a property interest in the strip, even though they had nothing more than the Peterson survey as the basis for that ownership, conveyed the strip by quitclaim deed. In 1996, Eisenberg, the then-purported owner of the strip (which, if it really did exist, provided access to the lake) hired John Coulter Peterson, yet a fifth surveyor, to assess the strip. John Peterson opined that the strip did not exist. Eisenberg subsequently sold his property to Stael along with a quitclaim for the strip. Finally, in 2001, Stael hired Harold Peterson to survey the land once again. This time, Harold Peterson monumented the controversial strip--and the legal fight began.
Proportionate MeasureThe survey math misapplied in this case was proportionate measure. One of these days, I am going to keep a promise I made to myself a couple of years ago and write an article--maybe a book--on why this particular tool should never be used by the land surveyor. This is not that article because I’m only scratching the surface here, but the No. 1 reason surveyors should not use proportionate measure is because it is never “used”--it’s abused. It should not even be taught to wannabe land surveyors because it provides a math “solution” or “formula” that can be applied to a situation that does not warrant such a solution. As with all of our supposed “rules of surveying,” this is only a valid rule if it follows the law and equity. Rules of surveying, standing alone, will not trump the law or equity.
Proportionate measure is only a valid rule because it stands on an equitable principle, that principle being that all equally situated landowners should rightfully share in the “gain or pain” of any excess or deficiency in land. Rarely are landowners equally situated when the surveyor attempts to prorate land excesses and deficiencies (and it’s almost always a deficiency). In addition, the courts always emphasize that proration is a remedy of last resort. But surveyors seldom use it as a last resort. In the vast majority of cases I review, it’s the first resort. And, finally, since proration is a last resort, this means there are other alternatives before applying it to a boundary.
Because we don’t understand property law, we also don’t understand that there are many other equitable principles and doctrines of the law that come into play well before proration will ever need to be applied. You would almost have to be surveying on the planet Mars before proration would ever need to be applied. And I have to add this. Since the vast majority of the boundary work we do is retracement, there is only one guaranteed result of proration: You will never be in the original corner position when you apply it. By definition, you can’t be.
By using proportionate measure to set a corner--that’s what you are doing, using proportionate measure to set a new corner position--you have now gone from a retracement surveyor to some form of “original surveyor” setting new lines and corners. Unfortunately, you’re trampling property rights in the meantime and committing torts. This drives up the cost of surveying property because surveyors are wasting time surveying the world and creating “make-weight” arguments in favor of their position instead of gathering and evaluating the relevant evidence, interpreting it under the clear-cut principles of the law and equity, and coming to a well-reasoned opinion as to what the boundaries are and where they are located. This gives land surveying a bad name. It is little wonder there aren’t more “rural surveyor” bills being introduced across the country.
This is exactly the situation we have in Romain v. Stael:
In 2001, appellant [Stael] retained Harold Peterson to survey the purported strip of land. The results of Harold Peterson’s 2001 survey … showed the “green line” to be the northern border of Romain’s lot. According to Harold Peterson, his survey results showed the strip of land that was purportedly owned by appellant. During his survey, Harold Peterson placed survey monuments where he thought the correct boundary line was located. However, Peterson did not investigate the fence along the “red line” … but instead relied solely on current data, calculations, and global positioning in determining the property boundary.
Appellant [Stael] asserts that the Halverson and Busch resurveys of Government Lot 2 that established the red line were done incorrectly because they used fence lines and other evidence to reestablish the boundary line that was originally surveyed by a U.S. Government surveyor. Appellant contends that because the original government surveyor did not place any monuments on the boundary line, there was no original survey line to retrace, and, therefore, the correct method to be used in determining the boundary line is the double-proportional measurement system mandated by federal law.
When a resurvey is made of sections, quarter-sections, etc., originally established by United States Government Survey, the aim of the resurvey must be to retrace and relocate the lines and corners of the original survey. Double-proportionate measurement is a standard surveying procedure when corners marking section boundaries are lost. But it is proper surveying techniques not to use the proportional measurement system until all efforts at finding the location of an obliterated monument by collateral evidence have failed. In this respect a surveyor cannot totally disregard a long established and maintained boundary fence. Proper surveying techniques require that before using the proportional measurement system, all efforts at finding the location of an obliterated monument by collateral evidence must be exhausted. [emphasis added]
Four surveyors “held” the red line dating back to at least 1959 and created additional subdivision plats based on that location. Even Harold Peterson ostensibly agreed with the line himself in 1973. The landowners had occupied and maintained this line from its inception. “Harold Peterson testified that he determined the green line to be the correct northerly boundary of the lot based on the proportional measurement system without personally investigating if there was any collateral evidence of the correct boundary line.” Peterson utilized proportionate measure because it gave him a formula for a solution to a situation that doesn’t even require math. It would appear that proportionate measure was Peterson’s first resort.
Trained technicians can adequately deal with things. A boundary is not a thing. It’s an idea under the law and equity that can only be adequately dealt with by professionals. If you’re not up to the task, step aside and let the real professionals handle it.
1- Manual of Surveying Instructions 1973, U.S. Department of Interior, Bureau of Land Management, Sec. 6-15, page 148.
2- The difference between technicians and professionals as described in Evidence and Procedures. Walter G. Robillard, Donald Wilson and Curtis Brown, Evidence and Procedures for Boundary Location, Fifth Edition at 484.
3 - Romain v. Stael, 2005 Minn.App.Unpub. LEXIS 118 (Minn.App. 2005). This is a published “unpublished” opinion, which generally means that the state Supreme Court will not officially “publish” the opinion because it breaks no new ground. It doesn’t diminish its usefulness as a learning tool since it is still the correct law.
4- The assumption could be made here that Peterson depicted this strip on his survey as an area of “conflict” or otherwise labeled or “hatched” it on his survey, even though, according to the court record, he did not “hold” it as the boundary.
5 - There is no mention in the court record as to any relationship between John Coulter Peterson mentioned here and Harold Peterson, the third surveyor mentioned in the case.
6- I am making reference to “original surveyor” here only to underscore the fallacy of the notion.
7- For more information on this topic, see “Traversing the Law: The Alabama rural surveyor controversy,” POB magazine, May 2008.
8- Romain v. Stael, at 7.
9- Id. at 11.
10- Id. at 11, 12.
11- Id. at 13.
12-“The question of what is a boundary line is a matter of law, but the question of where a boundary line, or a corner, is actually located is a question of fact.” Walleigh v. Emery, 163 A.2d 665, 668 (Pa.Super.Court. 1960).
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.
This column is a forum for analysis and discussion of closed court cases. Facts and information cited are limited to what is contained in the published legal documents. It is not POB nor the author’s intent to re-try cases that have already been resolved and closed by the court system.